The Real World: The Inaccessibility of Birth Control

Photo by Shape Magazine.

BY: JULIET SCHULMAN-HALL, SUMMER 2020 COLLABORATOR AT POWER IN PLACE

With more people stuck at home and less access to reliable forms of birth control, the inequalities of our society are being accentuated—specifically for women, and most especially for women of color. Tens of millions of people across the United States have lost their jobs due to the pandemic, many of whom can no longer afford health insurance. Without health insurance, the cost of birth control is anywhere between $240 to over $1,000 a year [1]. This cost is the reason “more than a third of female[s]...[have] struggled to afford prescription birth control at some point in their lives” [2]. The cost is not pocket change, it affects people’s lives.

Making matters worse, the United States Supreme Court ruled on July 8th that the Trump administration could “gut the Affordable Care Act’s (ACA) requirement that health insurance plans cover women’s essential preventive services, which includes contraceptive care” [3] allowing any employer claiming a religious or moral objection to contraception to be exempted from the requirement that contraception be included in their employees’ health insurance plans. Seven of the nine United States Supreme Court justices voted to allow employers to violate women’s rights to control their own bodies, and to strip them of access to affordable and accessible birth control. The Supreme Court’s attack on women continues, as the justices have ordered a lower court to “reconsider two abortion victories,” involving “an Indiana forced ultrasound law and a law forcing teenagers to notify parents of their decision to seek abortion care” [3]. More and more, the United States government continues to infringe upon the private lives and rights of women. 

The CDC reported that in “2015-2017, 64.9% of the 72.2 million women aged 15–49 in the United States were currently using contraception” [4]. Without a universal requirement that health plans cover contraception, many of these 64.9% of women will not be able to afford their birth control. Birth control is not only integral to preventing pregnancy but to eliminating the difficult and otherwise often untreated symptoms of disorders such as PCOS or endometriosis, among others [5]. Even if one does not need birth control for a disorder, it has been shown in a Guttmacher study that “a majority of women say birth control allowed them to take better care of themselves or their families (63%), support themselves financially (56%), complete their education (51%), or keep or get a job (50%)” [2]. Thus, the decision by the United States Supreme Court is not a small matter. It is one that directly targets and perpetuates gender inequalities in U.S. society, at a time when tens of millions of people are unemployed, and unable to afford proper healthcare. 

The most immediate and obvious result of a radical increase in unemployment and an increase in the numbers of employers who are not required to provide birth control in their health plans, will be unplanned and unwanted pregnancies resulting from a lack of access to affordable birth control. Many of these unplanned pregnancies will stem from communities of color as the pandemic has been affecting these communities disproportionately. In fact, a study at the Guttmacher Institute found that a disproportionate number of women of color have lost their jobs, resulting in many having little to no access to affordable contraceptives [6]. Thus, the pandemic and ruling from the Supreme Court not only directly harms women, impinging on their rights and their independence, but is also highly likely to disproportionately harm women of color.

Nearly a century ago, on August 26, 1920, the 19th Amendment to the Constitution was ratified, finally granting women the right to vote—half a century after black males were granted the right to vote in the Fifteenth Amendment, adopted in 1870. A century after women’s suffrage was won, the fight for women’s rights continues [7]. Today, many women not only lack control of their own fates, but are even kept from exercising the freedom to control their own bodies. 

References

[1] Kosova, Elly. “How Much Do Different Kinds of Birth Control Cost without Insurance?” NWHN, November 30, 2017. https://www.nwhn.org/much-different-kinds-birth-control-cost-without-insurance/.

[2] Parenthood, Planned. “7 Facts You Need to Know About Birth Control and Costs.” Planned Parenthood Action Fund. Accessed July 16, 2020. https://www.plannedparenthoodaction.org/issues/birth-control/facts-birth-control-coverage.

[3] Manian, Maya, Feminist Newswire, and Nan Aron. “Reproductive Justice Under Assault at the Supreme Court.” Ms. Magazine, July 10, 2020. https://msmagazine.com/2020/07/09/reproductive-justice-under-assault-at-the-supreme-court/.

[4] Daniels, Kimberly. “Products - Data Briefs - Number 327 - December 2018.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, February 14, 2019. https://www.cdc.gov/nchs/products/databriefs/db327.htm.

[5] “Medical Uses of the Birth Control Pill.” Center for Young Women's Health, June 22, 2020. https://youngwomenshealth.org/2011/10/18/medical-uses-of-the-birth-control-pill/.

[6] Lindberg, Laura, Alicia VandeVusse, Jennifer Mueller, and Marielle Kirstein. “Early Impacts of the COVID-19 Pandemic: Findings from the 2020 Guttmacher Survey of Reproductive Health Experiences.” Guttmacher Institute, June 24, 2020. https://www.guttmacher.org/report/early-impacts-covid-19-pandemic-findings-2020-guttmacher-survey-reproductive-health.

[7] Panetta, Grace. “Today Is National Voter Registration Day. The Evolution of American Voting Rights in 242 Years Shows How Far We've Come - and How Far We Still Have to Go.” Business Insider. Business Insider, September 24, 2019. https://www.businessinsider.com/when-women-got-the-right-to-vote-american-voting-rights-timeline-2018-10.

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Juliet Schulman-Hall is a rising junior at Smith College majoring in English Language & Literature, minoring in Sociology, and concentrating in Poetry. At Smith, she is involved in Emulate Magazine, the club volleyball team, and the Sophian Newspaper. She is passionate about criminal justice reform and animal rights and advocacy and is the Communications Lead for an animal nonprofit called Global Strays. 

Qualified Immunity: Why do we care so much about protecting police and so little about victims of civil rights violations?

Photograph by Lucas Jackson/ Reuters via Washington Post.

BY: PAIGE REDDINGTON, SUMMER 2020 COLLABORATOR AT POWER IN PLACE

Have you ever wondered why police are able to get away with firing a weapon with no consequences in response to mild situations? Why these instances are rarely brought to light, or not tried in court against officers? What specifically protects police officers in these instances, and allows them to frequently abuse their power? It is more than just inherent bias and institutional racism within the justice system—there are specific rights in place protecting police officers, which allow them to frequently act in accordance with their racism and bias, without facing adequate consequences. Meet qualified immunity, a doctrine inherently defending police officers’ decisions, often regardless of what the decision is. 

Qualified immunity is a legal doctrine which protects police officers from having legal action taken against them. This doctrine responds to section 1983 of federal law which states the right to sue officials who have violated constitutional rights [1]. The purpose of qualified immunity is to balance public officials’ power so that they cannot take advantage of their power while performing their duties, but at the same time protect them from being held liable when they need to make essential decisions in order to perform their job [2]. This doctrine stands regardless of the violation of someone’s civil rights. The only exception to this protection of police officers is if their action violates “clearly established” law.  In order to decide if the action violates a “clearly established” right, courts question if a “reasonable official” would think that the defendant’s action violated the victim’s rights, applying law in effect at time of the incident, rather than current law at the time of the court’s consideration. If the action is not deemed as a violation of “clearly established” law, then the victim is unable to take the officer to court to try them [3].

The present-day ideals of qualified immunity were established in the case of Harlow v. Fitzgerald (1982). In Harlow, rather than previously examining the officer’s “subjective good faith,” they decided to use the standard of “clearly established” law, which was defined as actions that “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” This change did increase protection for police officers, but also, as claimed by the court, steadfastly prevented police from acting in an unruly or exploitative way.

However, this raises several issues that prevent victims from obtaining justice. Victims whose civil rights have been violated in new, unique ways that have not previously been tried in court are unable to bring the violation to court, since the court needs victims to indicate a past, similar ruling that demonstrates the current violation as “clearly established.” As a result, even if this new violation becomes a repeated issue, it remains unqualified to be tried in court. This specifically sets up the legal system so that justice can never be served in new cases of violations with public officials, and, as a result, prevents and discourages victims from attempting to defend their rights. 

In Pearson v. Callahan (2009), the court ruled that, when considering a case, only the “clearly established” qualification must apply, when previously in 2001, it was decided that first the court should consider if the conduct infringes on a constitutional right, and second if it is clearly established. Now even if conduct infringes on someone’s constitutional rights, if it has not been taken to court previously, it is not considered clearly established and cannot be tried in court. Another obstacle the “clearly established” qualification brings stems from the definition of a “reasonable officer.” In 1986, the court decided that the situation must now be judged by “any reasonable officer” in order to be “clearly established.” According to Harvard Law professor Scott Michelman, this means that the action must be so clearly wrong that any officer—even the “least reasonable officer”—must recognize it as a violation. 

Many victims do not even attempt to bring their case to court, because there likely has not been a prior court case similar to their case, since qualified immunity was established in 1982. It creates obstacles for victims attempting to achieve justice, to the point where striving to take legal action has too many steps and costs, causing excessive effort, depletion of financial resources, and overall exhaustion. These costs of just attempting to achieve justice in the legal system outweigh the benefits of actually achieving a positive outcome, especially when the odds that victims can even bring their case to court is so low. Victims may not have the legal resources to research and discover whether their case is “clearly established” or know how to defend that it is “clearly established,” since this doctrine is so specific and rooted in legal history.

Supporters of qualified immunity argue that this doctrine is essential for police officers as it allows them to make instantaneous decisions when their duty calls for it, such as in life or death situations [4]. Supporters also claim that police officers would be responsible for a large sum of legal expenses every time legal action is taken against them, and the exhaustion that these cases would bring to police officers would detract from the attention they bring to their actual duties of handling important public issues. The Supreme Court argues that few people would decide to go into positions of governmental office if they did not have protections like qualified immunity. Essentially, the Supreme Court contends that you cannot take legal action against police officers if they were not aware of the law at the time of the violation—hence, the “clearly established” law distinction.

However, the reality is that very few qualified immunity cases actually involve these life or death situations where the officer was acting out of necessity. The Cato Institute reported that the Supreme Court is in the process of reviewing eight various cert petitions involving qualified immunity, yet the “overwhelming majority” of these petitions do not demonstrate any direct harm to the officer where they would need to make instantaneous decisions for their own protection. Justice Clarence Thomas, an originalist, criticized that qualified immunity has been used to exercise “free-wheeling policy choices” which the court does not have the power to actually make. Qualified immunity even stunts the ability for constitutional law to develop over time, as important cases are unable to be tried because they are not qualified as clearly established—this is particularly important as new innovations and technologies advance over time, raising new questions that remain unaddressed due to this doctrine.

The qualified immunity doctrine does not even rid police officers of the financial burden of legal expenses. UCLA law professor Joanna Schwartz reports that police officers only bore 0.2% of the burden of expenses, due to police indemnification. As a result, officers’ financial costs rarely come out of their own money. Meanwhile, many victims are discouraged from even attempting to bring a case to court, because of its exhaustion of resources with a small chance of positive outcome. Even though in 1976 Congress allowed lawyers representing victims of civil rights violations to recover, this is not applicable in cases that have been denied due to qualified immunity. As a result, many victims are unable to even find lawyers to represent and fight for them in the first place.

While the elimination of this doctrine could discourage people from becoming police officers, it is more likely to discourage people who want to abuse their power from becoming police officers. Qualified immunity reinforces what Justice Sonia Sotomayer refers to as a “shoot first and think later” mentality, which involves being less concerned with the consequences of firing a weapon. The removal of qualified immunity would not ensure that victims win cases against police officers. Rather than discouraging and preventing victims from obtaining justice, the removal of qualified immunity would simply allow them a trial in court, and discourage officers from abusing their power due to the increased  likelihood of consequences. The removal of qualified immunity would eliminate just one of the many obstacles for victims of police brutality on the path to fighting injustice. 

On June 4, the Supreme Court reviewed a number of petitions involving qualified immunity, but it took a pass on resolving qualified immunity for the time being, due to less than four votes agreeing to come back to it then. This now puts the issue in Congress’s hands [5]. Recently, Representatives Justin Amash and Ayanna Pressley have proposed an Ending Qualified Immunity Act, which calls to make additions to section 1983 in order to limit the amount of immunity granted to officials, discouraging them from unfairly exercising their power [6]. Senator Cory Booker has also proposed a framework for police reform that would rectify qualified immunity [7]. If you are wondering what can be done in the meantime, you can sign a number of online petitions calling for the end of qualified immunity, spread information about qualified immunity to family and friends, or, if you have the financial means, donate to organizations working to end qualified immunity, like the Institute for Justice.

Resources:

Donate to Institute for Justice

End Qualified Immunity Petition

Qualified Immunity Needs Legislative Reform Petition

Congress: Qualified Immunity Petition

Rep. Ayanna Pressley and Justin Amash’s End Qualified Immunity Act

Chair Bass, Sen. Booker and Harris, and Chair Nadler’s Justice in Policing Act of 2020

Sen. Mike Braun’s Qualified Immunity Reform Act

References

[1] Leef, George. “Qualified Immunity -- A Rootless Doctrine The Court Should Jettison.” Forbes. Last modified March 21, 2018. Accessed June 23, 2020. https://www.forbes.com/sites/georgeleef/2018/03/21/qualified-immunity-a-rootless-doctrine-the-court-should-jettison/#3692c38231c7

 [2] “Qualified immunity.” Legal Information Institute. Accessed June 23, 2020. https://www.law.cornell.edu/wex/qualified_immunity#:~:text=Pearson%20v.%20Callahan%20.,established%E2%80%9D%20statutory%20or%20constitutional%20right.

[3] Sobel, Nathaniel. “What Is Qualified Immunity, and What Does It Have to Do With Police Reform?” Lawfare. Last modified June 6, 2020. Accessed June 23, 2020. https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform

[4] Sibilla, Nick. “New Bill Would Abolish Qualified Immunity, Make It Easier To Sue Cops Who Violate Civil Rights.” Forbes. Last modified June 3, 2020. Accessed June 23, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/03/new-bill-would-abolish-qualified-immunity-make-it-easier-to-sue-cops-who-violate-civil-rights/#8d2cd096fbc9

[5] Dwyer, Devin. “Supreme Court won’t revisit qualified immunity for police, leaving it to Congress.” ABC News. Last modified June 22, 2020. Accessed June 23, 2020. https://abcnews.go.com/Politics/supreme-court-wont-revisit-qualified-immunity-police-leaving/story?id=71374240

[6] “Reps. Pressley, Amash introduce bipartisan legislation to end qualified immunity.” U.S. Congresswoman Ayanna Pressley. Last modified June 4, 2020. Accessed June 23, 2020. https://pressley.house.gov/media/press-releases/reps-pressley-amash-introduce-bipartisan-legislation-end-qualified-immunity

[7] Silva, Christianna. “Cory Booker Wants To End Qualified Immunity For Police Officers.” NPR. Last modified June 7, 2020. Accessed June 23, 2020. https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/07/871713872/cory-booker-wants-to-end-qualified-immunity-for-police-officers

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Paige Reddington is a rising senior at Amherst College majoring in English. She is an Arts and Living Writer for the campus newspaper The Amherst Student, a staff editor for the commentary magazine The Indicator, a member of the Reproductive Justice Alliance, and runs cross country and track for Amherst. Her interests include writing, social justice, and intersectionality.

Living History with Washington State Rep. Sharon Tomiko Santos

Before my interview with Washington State Representative Sharon Tomiko Santos, I admit I wasn’t completely knowledgeable about the tragic history of the Japanese incarceration camps. I knew the incarceration was a great stain upon America. As a nation, we denied 120,000 people of Japanese heritage (the majority of them were citizens) their constitutional rights of due process and equal protection. Naively, I thought everything was neatly sorted out: reparations were made, the government officially apologized and the Supreme Court must have ruled it unconstitutional to incarcerate Japanese Americans without due process. However, as I dug deeper, I found that the story is far more complicated, especially the Supreme Court component.

Washington State Representative Sharon Tomiko Santos at her place of special meaning–Keiro Nursing Home, Seattle.

With the headlines of the legality of a Muslim registry and the Japanese internment camps cited as a precedent by Carl Higbie, a Trump surrogate during his presidential election campaign, I decided to reexamine Representative Santos’s interview in 2015, when she posed for her Power in Place portrait. Her maternal family (mother and grandparents) had been forcefully relocated to an incarceration camp in 1942. As a child, Representative Santos grew up with the sense that a great injustice had been committed against her community. Sorting through her interview, I started to realize that this incredible woman was a witness to the post-incarceration rebuilding and healing of her community and the legal battles to follow. As she put it: “History unfolded and I happened to be there, like the Tom Hank’s movie Forrest Gump, where he's getting to be a witness throughout history. I was a Japanese American female Forrest Gump, in this case." 

“History unfolded and I happened to be there, like the Tom Hank’s movie Forrest Gump, where he’s getting to be a witness throughout history. I was a Japanese American female Forrest Gump, in this case.”

A group of Japanese-Americans arrive at the Manzanar incarceration camp carrying their belongings in 1942.

 As much as her parents shielded Sharon Tomiko from the family’s economic and psychological repercussions of incarceration, she grew up feeling the continued discrimination toward Seattle’s Japanese-Americans. “People in the community were very angry about being mistreated, not heard, effectively patted on the head and told to go away.” Combined with early civic engagement and a personal call to action, Sharon Tomiko was part of a larger community discussion "about how do we get a place at the table.” It first began as a fight for redress—obtaining an official governmental acknowledgment that a great injustice was perpetrated upon her fellow Japanese Americans by incarcerating them during World War II.  "Seattle achieved renown for having organized the very first Day of Remembrance in the country. As a high school student, I was able to galvanize my fellow students to help organize and volunteer at the event. We were, collectively, as the organizing committee, very surprised at the overwhelming response we received from the greater Seattle area. We thought we would be lucky to have ten/twenty cars show up, but a caravan stretched several miles long from Seattle to Puyallup, which was the first assembly center where they assembled all the Japanese Americans,” for mass detention.

Later on in college, as a student of history and specifically governmental and constitutional history, Sharon Tomiko's senior project focused upon the coram nobis case of Gordan Hirabayashi.

Gordan Hirabayashi was one of only three Americans to defy the U.S. government's incarceration of Japanese-Americans during World War II.

"Since Gordon Hirabayashi is a Seattle person, his coram nobis case actually took place right downtown, in our federal courthouse.  So as a college student, I was able to watch history unfold.”

Gordon Hirabayashi’s initial case was heard by the US Supreme Court in 1943. He had openly defied Roosevelt’s imposed wartime curfew upon Japanese Americans. His resistance challenged the very premise of the executive order of exclusion, as well as deportation and incarceration. At the time, the Supreme Court’s decision focused around a narrow legal interpretation of the necessity of allowing curfew policies if our national security is threatened during wartime.

In 1982, newly unearthed documents suggested that US government officials did indeed hide evidence that demonstrated there was no true military reason for Roosevelt’s exclusion order.  Thereby, Japanese Americans were denied due process under US law when they were forcefully deported to camps.

“US Supreme Court never had the opportunity to rule on the constitutionality of the policy of Japanese American incarceration. Thus, technically, the wartime exclusion order still stands today. ”

Using a writ of coram nobis (a legal order allowing for a correction in judgment of court cases when new information surfaces that proves key evidence was concealed during the initial court proceedings), Hirabayashi’s case was reopened by US Court of Appeals for the 9th Circuit. In 1984, his conviction was subsequently overturned. As a result, his case never made it back to the US Supreme Court, thus the high court never had the opportunity to rule on the constitutionality of the policy of Japanese American incarceration. Thus, technically, the wartime exclusion order still stands today.

President Reagan signing the 1988 Civil Liberties Act.

Sharon Tomiko and her people’s fight for redress wasn’t in vain. To compensate the victims who suffered gross injustice and hardship caused by wartime incarceration, Congress passed the Civil Liberties Act in 1988 when she was in graduate school. It was a formal presidential apology to every surviving US citizen or legal resident immigrant of Japanese ancestry incarcerated during World War II. The Act also provided a provision for a public education fund to prevent a future recurrence of forced incarceration and the loss of one’s inalienable rights. Two governmental agencies were established to implement reparations payments to eligible individuals. 

Representative Sharon Tomiko Santos never forgot the lessons of her community’s trials and tribulations. To this day, she remains a vocal advocate for her legislative district’s diverse population. In particular, she holds special regard for the elderly—“the immigrant Japanese pioneers who, with nothing more than just hopes, came to the United States, like so many other immigrants and found that there was opportunity here. But because of rampant racism and discrimination, the dreams for opportunities were really not theirs to be able to reach and achieve. These elderly pioneers managed to still work very hard on behalf of their children’s opportunity. Their resilience, the lessons that they imparted to their children, and ultimately to their grandchildren, is why I've been able to succeed, and become a voice for those who are under-represented. Most importantly, I try to serve as a reminder to my colleagues about the deep meaning of the Constitution and our obligation, not just by words, but by real actions to continue to hold its relevance for future generations.” 

Thank you, Representative Sharon Tomiko Santos, for imparting your family’s historic and personal narrative to Power in Place. Your story isn’t a relic of the past. It is as relevant as it was in 1942 and 1988. I’m reminded to stay vigilant and never assume that civil liberties are unassailable or guaranteed by our courts and government.  The suppressed history of transgression against freedom must always be unearthed and understood as a warning for future generations who believe in true democracy.

For further study & understanding the history of the Japanese American community and their World War II experiences, Rep. Santos highly recommends Densho: The Japanese American Legacy Project www.densho.org.